Monday, July 27, 2009

The California Supreme Court has disbarred an attorney who reportedly changed his vote during jury deliberations simply to end a tie because he was tired of serving as a juror. For the full story, go here and here.

Tuesday, July 21, 2009

Suppose the judge calls for a hearing and you are not prepared. Here is what you should NOT do: do not tell the judge you can't make it that day because _______ (insert lie here.)

The Legal Profession Blog is reporting today that the Arizona Disciplinary Commission approved a proposed 30 day suspension followed by two years probation in a matter where the attorney had falsely advised a judge that he could not proceed to a hearing because he was due to appear in another court. The judge checked and found that the representation was false. The attorney admitted the misconduct and asserted in explanation that he was "emotionally frazzled" and unprepared due to a fight with his wife the night before the hearing and the theft of his briefcase.

Thanks to Mike Frisch of the Legal Profession Blog for the information.

Monday, July 20, 2009

The Legal Profession Blog is reporting today that the Minnesota Lawyers Professional Responsibility Board has proposed the adoption of Opinion No. 21, which states that a lawyer who knows that his or her conduct could reasonably be expected to be the basis for a malpractice claim by a current client, the lawyer should disclose any significant risk that continued representation of the client will be materially limited by the personal interest of the lawyer and should advise the client to seek independent legal advice about the potential claim and the lawyer’s continued representation.

Tuesday, July 14, 2009

In my Professional Responsibility course, we spend a bit of time talking about "trial tactics." Here is a story that falls in that category. Prof. Jonathan Turley recently posted a comment on his blog on a case where an attorney filed a motion demanding that the court ordered opposing counsel to wear shoes without holes in court. The lawyer insisted that the shoes are cheap theatrics to play to the sympathies or jurors. The other lawyer replied that they are just cheap. For the full story go here.

Tuesday, July 7, 2009

Here is yet another comment on Judge Sotomayor's possibly misleading use of a firm name by Eric Turkewitz, the blogger who actually brought up this story for the first time back in early June. Go here.

The New York Appellate Division for the First Judicial Department has imposed a three month suspension in a matter involving two instances of client neglect. The opinion is available here.

In a way this case is nothing other than another example of a lawyer trying to handle more work than he was capable of. What is interesting about this particular case, though, is that the court makes a point of saying that the lawyer actually meant well. His intentions were, in fact, very good:

". . . respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals."

What is important, then, is to remember that it does not matter if your intentions are good. You simply can't run your practice in a way that neglects your clients. If you have too much work, you need to find a way to get it under control.

Almost a month ago, I posted a note about a story regarding Judge Sotomayor's use of the phrase "and associates" in her firm name when it was not clear she had any associates at the time. (See here). As I pointed out in my note, the story was first brought up by Eric Turkewitz of the New York Personal Injury Law Blog. Well, apparently, the New York Times picked up on the story and published an article on it (without attribution to Turkewitz) and now a lot of people are talking about the issue. See the Legal Ethics Forum discussion here, for example.

Monday, July 6, 2009

Mike Frisch of the Legal Profession Blog wrote today on a case in which the Tennessee Supreme Court affirmed a five month suspension imposed on an attorney for engaging in negligent conduct. The attorney missed the statute of limitations deadline for filing a personal injury suit. When I teach Torts, I tell my students this is one of the dumbest mistakes an attorney can make and I tell them it is a common basis for malpractice suits. I can now tell them it can also result in disciplinary sanctions. I knew that was true before, but my sense (which could be wrong since I am not following every single sanctions case out there) is that courts do not typically impose disciplinary sanctions for single instances of purely negligent conduct.

Thursday, July 2, 2009

Should a candidate be denied admission to the bar because of too much debt? Yes, says a panel in New York. Full story here. I understand it when a panel concludes that an applicant has demonstrated a recurrent inability to manage his or her finances (or has been irresponsible about it), but I am not so sure that simply having too much debt justifies denial of admission. It is not clear to me whether the case here is an example of the former or the latter. The story states that the panel that denied admission stated "that his student loans were too big and his efforts to repay them too meager for him to be a lawyer."

After seeing two cases in less than three months where the Department of Justice asked the court to dismiss indictments after allegations that its lawyers violated rules requiring disclosure of information to the defense, a federal judge (Emmet Sullivan) sharply questioned Justice Department lawyers about whether they are in violation of the D.C. Rules of Professional Conduct by making false statements to the court or failing to correct false statements.

In both cases the Justice Department was accused of withholding evidence and making false statements to the court. The latest allegation comes in the conspiracy cases against businessman Zhenli Ye Gon, accused in an international drug trafficking scheme.

The Illinois Supreme Court announced yesterday it has (finally) adopted a new set of rules mostly based on the ABA Model Rules of Professional Condcut. The rules will be effective starting January of 2010.

The text of the new rules is available online here and in pdf format here. A summary of the changes is available here.

In 2008, while the rules were still being considered by the Supreme Court, I published an article discussing them in detail. The article is available here. In it, I praised the work of drafting committees for the most part, but I also criticized some aspects of the new rules.

Here are a a few of the most significant changes in the new rules:

--Unlike the current rules, the new rules include comments (usually the same text of the comments to the ABA Model Rules).

--The new rules abandon the old notion that the duty of confidentiality is based on a distinction between confidences and secrets which results in a rule that protects a much broader range of information. (The Ethical Quandry blog has a short comment on the implications of the new rule on confidentiality here.)

--The new rule on confidentiality also significantly changes the circumstances where disclosure of confidential information is permitted and expands the circumstances where it is mandated.

--The new rules fix an important discrepancy between the title of rule 4.2 and its text.

-- The new rules change the approach to the issue of whether an attorney can represent a client if the attorney has to testify in the client’s case.

--The new rules adopt a specific rule banning sexual relations with a client unless a consensual sexual relationship existed between them before the client-lawyer relationship began and the comment to the rule clarifies that when the client is an organization, the rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters. (Rule 1.8(j))

--The new rules adopt a new rule to regulate duties to prospective clients based on Model Rule 1.18.

--The new Rule 3.8 on special responsibilities of prosecutors adds a duty to protect the defendant's right to counsel.. It also adds a controversial statement regarding the authority of a prosecutor to subpoena other lawyers.

--Unlike the ABA Model Rules, the new Illinois rules do not require consent to conflicts of interest to be in writing.

--Sadly, the new rules eliminate the current rule urging lawyers to provide pro-bono services.

--The approach to the duty to report another lawyer's misconduct seems to mandate disclosure of more information and under more circumstances than the ABA Model Rule.

--The new Rule 4.4(b) states that a lawyer who receives a document relating to the representation of a client that the lawyer knows was inadvertently sent should promptly notify the sender. The rule, however, does not impose a duty to return the document or to refrain from reading it. The comment to the rule states that unless there is applicable law that requires the lawyer to return the document, the decision to return it is a matter of professional judgmentand personal choice.

The Legal Profession Blog is reporting today on yet another case of prosecutorial misconduct - improper arguments during the closing in a murder trial.

The prosecution's case was essentially based on the credibility of two witnesses which the defendan't lawyer vigorously attacked during closing arguments. In response, the prosecutor made statements that improperly vouched for the credibility of these two witnesses. As described in the opinion, "In one instance, the respondent told the jury that he did not offer one of the witnesses any deal until after he personally verified the witness’s account by following the route to the crime scene that the witness had described. The respondent improperly vouched for the second witness by telling the jury that the witness had turned his life around after serving time in a federal prison." This conduct violated Mass. R. Prof. C. 3.4(e), 3.8(h) and (i) and 8.4(d).

In addition, the prosecutor's closing argument also crossed the line when he suggested to the jury that they should avenge the victims in violation of Mass. R. Prof. C. 8.4(d).

The murder conviction of one of the defendant was overturned by the Supreme Judicial Court and the court ordered a new trial due to the prosecutor's improper closing argument. (Commonwealth v. Williams, 450 Mass 894 (2008)).